REG 37905

April 14, 1975

Barnstable, ss.

Sullivan, J

DECISION

Arthur N. Amadon, the petitioner, of Wellesley, in the County
of Norfolk and the Commonwealth of Massachusetts brings this petition
pursuant to the provisions of G.L. c. 185, §1, to register and confirm
his title to a parcel of vacant land on Weir Road in Eastham,
in the County of Barnstable and said Commonwealth, containing about
11.137 acres.

By amendment to the petition the petitioner denied the existence
of the abandoned town road and any rights of public or private use thereof.
A second amendment denied that the premises were subject to any
inheritance tax lien arising out of the estate of the petitioner's grandfather.

The petitioner also has brought a petition to register and confirm
his title to a parcel of land on Nauset Road in said Eastham,
containing about 4.153 acres. The two proceedings were tried together
since in each the principal issue was the same: whether the
petitioner had acquired title by adverse possession as against his
co-tenants, the respondents Glenn Edwin Hellyar and Florence L. Hellyar.
The cases will be treated separately, however, for the purpose of
decision. The other respondents in this case, Mr. and Mrs. Downing,
Mrs. Fessenden and Mrs. Livingston are abutters who claim either that
the town road shown on the filed plan as "center line of abandoned road"
had not been abandoned or alternatively that they had acquired the
right by prescription to use such road as a private way. Appearances
and objections were also filed on behalf of Eleanor F. Rowand, Dorothy R.
Ropp and Mary M. Shurtleff, but they were withdrawn prior to the trial.
The Commonwealth of Massachusetts also answered claiming an Inheritance
Tax lien by virtue of possible inheritance taxes due on the interest
of the petitioner's grandfather, Arthur F. Amadon in the premises. [Note 1]
At a pre-trial conference it was agreed that any decree of registration
which was entered would be so subject.

The trial was held at the Land Court on January 20, 1975 at which
a stenographer was appointed to record the testimony. All exhibits
introduced into evidence are incorporated herein for the purpose of any
appeal.

The issues at the trial were narrowed by an agreement reached by
the parties relative to the pertinent genealogy and the numerical
interest of the respondents Hellyar should the Court determine that
their interest had not been lost through adverse possession. The
agreement also touched on a vote adopted by the 1922 Annual Town Meeting
of the Town of Eastham to discontinue a certain road identified
only by its location. This agreement is entitled "Stipulation of Facts",
applies to both cases numbers 37905 and 37906 and reads as follows: [Note 2]

IT IS HEREBY STIPULATED in the above Matters as follows:

1. The two parcels involved in Land Court Registration Nos.
37905 and 37906 were the property at his death of Jesse Collins,
the great-great-grandfather of the petitioner, Arthur N. Amadon.
The parcel in No. 37905 was originally purchased by Jesse
Collins in 1856, by deed from Jonathan Gifford, and was relatively
recently altered by the sale of one piece and the purchase
of another, accomplished in 1972 (to and from Avis
Nickerson) (see narrative statement of the examiner in No. 37905
as well, as documentation included therewith). The parcel in
No. 37906 was purchased by Jesse Collins in 1853 by deed from,
Temperance Doane. (See narrative statement of the examiner in
No. 37906 as well as documentation included therewith.)

2. Jesse Collins had five children who survived past
infancy: Charles, Elisha, Joseph, Laura and Julia (great-grand-mother of the petitioner). His Will did not devise either of
the parcels in question and it contained no residuary clause.

3. Joseph Collins conveyed all interest he may have had
in the parcels in question to Nicholas P. Knowles, husband of
Julia Ammidon Knowles, by deed dated 1873 (see sheet 7A of
the examiner's report in No. 37906). No record of Nicholas
Knowles' death and no record of probate of his estate has been
found. At his death, Julia Knowles would have been his heir.
(See sheet 2A of the examiner's report in No. 37906.)

4. No mention is made in Jesse Collins' Will of his son,
Charles, and no record of Charles' death or of any probate of
his estate has been found. (See sheet 2 of the examiners
report in No. 37906.) The intestate share which passed to
Charles thus is believed to have reverted equally to the heirs
of Jesse Collins and their issue.

5. Julia Knowles died in 1904 leaving a Will with a
residuary clause sufficient to devise her interest in this
property to her son, Arthur F. Amadon, grandfather of the
petitioner. An inventory filed with the probate for Julia's
estate lists the two parcels (see sheet 9 of the examiner's report
in No. 37906).

6. In 1925 Arthur F. Amadon caused the deeds to the two
parcels to be recorded in Barnstable County (see certificate
of registration on the deeds, appended as Exhibits A and B).

7. In 1940 Arthur F. Amadon filed an affidavit of relationship
indicating his belief that he was the only surviving
heir of Jesse Collins and thus was the exclusive owner of any
property owned by the heirs of Jesse Collins (see sheet 11 of
examiner's report in No. 37906).

8. On February 6, 1922 the Annual Town Meeting of the
Town of Eastham "voted to discontinue a road leading from the
Town road known as the Addie Nickerson road, westerly to Luther
Smith's old asparagus bed as outlined in Article 27. (See
copy of the vote, appended as Exhibit C.)

10. In 1957, the Town of Eastham took various parcels along
Nauset Road as part of a perpetual easement for the town way.
Parcel 12 was listed as "Arthur Amadon, 1,780 square feet more
or less taken - awarded $8.90 no betterments". (See sheet 15
of the examiner's report, in No. 37906 and portions of maps filed
in connection with these takings at sheets 16 and 17 of the
examiner's report in No. 37906.)

11. As part of a Settlement Agreement between and among
heirs of Elisha K. Collins and the petitioner, said heirs of
Elisha K. Collins have conveyed all of their right, title and
interest in the parcels in question by quitclaim deed dated
January 17, 1975 (see copy of deed, appended as Exhibit E).

12. Laura Ann Collins, the daughter of Jesse Collins,
married William J. Johnson (see copy of Certificate of Marriage,
appended as Exhibit F).

13. Laura Ann Collins Johnson had two children: Louisa R.
Johnson (later Taylor) and Charles W. Johnson. Both of these
grandchildren of Jesse Collins were provided for in his Will
(see sheet 6 of the examiner's report in No. 37906).

14. Charles W. Johnson died in 1887 (see sheet, S-1-2 of
the examiner's supplemental report in Nos. 37905 and 37906).

16. Louisa Taylor died, testate, in 1897, leaving the
residue of her estate in trust for her nephews, Charles J.
Johnson and William K. Johnson for life, remainder to Mary L.
Rhoades (see sheet S-1-6 of the examiner's supplemental report
in Nos. 37905 and 37906).

17. Charles J. Johnson died in 1920, unmarried, and
William K. Johnson died in 1933, unmarried (see sheet S-1-3 of
the examiner's supplemental report in Nos. 37905 and 37906).

18. Upon the death of William K. Johnson any share of the
parcels which had passed to Charles W. Johnson reverted to the
heirs of Jesse Collins and any share held in trust for Charles W.
Johnson's sons from the estate of Louisa Taylor would have been
included in the assets ordered turned over to Blanche R. Hellyar as
administratrix of the estate of Mary L. Rhoades, remainderman
under the Will of Louisa Taylor (see. sheet S-l-7 of the examiner's
supplemental report in Nos. 37905 and 37906).

19. Mary L. Rhoades died, intestate, in 1928 leaving her
husband, Charles E. Rhoades, and two daughters, Elsie M. Manning
and Blanche C. Hellyar as her only heirs and next of kin (see
sheet S-1-10 of the examiner's supplemental report in Nos.
37905 and 37906). Charles E. Rhoades died, intestate, in 1930
leaving the said two daughters as his only heirs and next of
kin (see sheet 8-1-12 of the examiner's supplemental report in
Nos. 37905 and 37906).

20. Elsie M. Manning died, intestate, in 1962 leaving
her husband, Ralph L. Manning as her sole heir (see sheet
S-1-13 of the examiner's supplemental report in Nos. 37905 and
37906). Ralph L. Manning died in 1967 leaving his entire
residuary estate to Florence L. Hellyar, one of the respondents
in these proceedings. (See sheet S-1-15 of the examiner's
supplemental report in Nos. 37905 and 37906.)

21. Blanche C. Hellyar died in 1970 leaving her son,
Glenn Edwin Hellyar, as her only surviving heir and next of kin.
Glenn Edwin Hellyar is the husband of Florence L. Hellyar and
is also one of the respondents in these proceedings.

22. As a consequence of the events herein described, the
petitioner now owns, independently of any claim he may have as
to title by adverse possession, an undivided eighty seven and
one-half per cent (87 1/2%) interest in the parcels in question
and the respondent's (sic) Glenn Edwin Hellyar and Florence L.
Hellyar, would similarly own an undivided twelve and one-half per
cent (12 1/2%) interest in the parcels in question derived from the
estate of Louisa Johnson Tyalor (sic)."

As clearly appears from the stipulation the petitioner and the
respondents Hellyar claim under children of one Jesse Collins who
held the record title to the premises. As between these parties the
issue is whether the petitioner through acts of adverse possession
exercised by him and his ancestors has barred the interests which
the Hellyar otherwise would have inherited from members of the Collins
family, they themselves not being related to the petitioner so far
as appears in the record. At the trial Mr. Amadon, his wife, Albert
Henry Nickerson, a Registered Land Surveyor, Arnold S. Dane, the Land
Court examiner, and James B. Downing all were called as witnesses by
the petitioner. The witnesses called by the respondents were Bertha E.
Fessenden, Carol Livingston Niden and the petitioner. From their
testimony and other evidence I find the following facts:

The petitioner, as a small boy growing up in the middle west,
spent summers with his grandmother and grand aunt at their home in
Orleans, the Town next adjacent to Eastham in the direction of the
Upper Cape. His grandfather was working on the railroad during this
period which extended from 1920 to 1935, and they had family picnics
on the premises, and Mr. Amadon remembered playing in the woods as
a child. When they went for a drive, they would ride by the properties
now sought to be registered in the two proceedings, and his
grandfather would say that these were the lots his mother (i.e Julia
Collins Amadon Knowles) left him. They used to pick berries which
would then be canned for later eating. His grandfather spoke of cutting
wood on the lots and using it in the Orleans house; he also sold it
to friends and acquaintances, one of whom, a Mr. Nickerson whose land
abutted the Weir Road parcel offered to purchase the lot.

In the following fifteen year period the use was less since the
petitioner's grandfather was injured at work and suffered permanent
partial disability, but semimonthly family picnics on the lot and
berry picking did continue. The petitioner and his wife would take
his family on rides in the Lower Cape area and would drive by the locus
in the course of the outing at which time Arthur F. Amadon again would
refer to his wood lots. No one other than family members was ever
seen on the property.

The petitioner's grandfather died in 1950. From that time to the
present the petitioner and his wife made periodic trips to the Cape
where after checking on the welfare of their respective mothers they
would stop at one of the lots and take a walk or picnic on it. Over
the years the berry picking and family picnics continued during the
course of which their son and his friends played games in the woods.
These occasions occurred as frequently as two or three times a month.
Mr. Amadon held himself out as the owner (as he thought he was)
so represented to town officials. Plans of abutting land list him as
the owner, and he received legal notices as an abutter in hearings on
subdivision plans. In 1972 he alone conveyed a piece of the Weir
Road parcel to Avis. E. Nickerson (Abstract, Sh. 19); and at other
times he received offers to purchase from third parties. For twenty-five
years the petitioner paid what he thought was the tax bill for
the premises, but for much of this time the wrong lot number and area
was assessed to him. On at least one occasion photographs of deer
were taken.

As is apparent from the photographs introduced as evidence as
Exhibits 3 and 4, the former location of what is denominated the
abandoned town road on the filed plan is overgrown with trees and
brush typical of Cape Cod vegetation and is impassable with a vehicle
from the southeasterly corner of the premises to Weir Road. There was
evidence that this portion of the road had not been used for at least
twenty-six (26) years and that it could not now be used although there
was some testimony as to its sporadic use by grandchildren of one of
the respondents at play. It is clear that access to adjoining parcels
which would otherwise be landlocked has been from the easterly end
of the road leading in from Great Pond Road which runs roughly parallel
to Weir Road. This portion of the road is not located on the locus
and the extent of any rights therein acquired by prescription or grant
is not now determined. So far as the road formerly crossing the
premises is concerned, on all the evidence I find and rule that no
right by prescription has been established, and that no evidence of
any private right by grant to use the way was introduced.

The question remains as to whether the 1922 vote referred to in
paragraph 8 of the "Stipulation of Facts" related to the road here
in question. There was testimony that at one time Addie Nickerson
owned a house near the easterly end of the road and that Luther Smith
had an asparagus bed across Weir Road from the locus. There was also
further evidence that there was a building across from the old road
and somewhat south of it which was used either as a processing building
for the asparagus or a bake house for the crew that worked on the
asparagus bed. Mr. Albert Henry Nickerson who lives in Eastham, is a
surveyor familiar with the vicinity of the locus and has prepared many
plans of properties in the general area, testified that in his opinion
the vote has to refer to this road, and I so find.

The respondents have argued that the taking of a road as a public
way must be shown before it can be discontinued or abandoned. Perhaps
this may be so in an instance where rights may accrue by reason of the
discontinuance or abandonment of a public way, but I need not reach
this question. If not already a public way the vote of the town here
at least was sufficient to serve as a disclaimer of any rights of the
public therein, and no private rights have been shown. This aspect of
the case is similar to Leonard v. Adams, 119 Mass. 366 , 368 (1876)
wherein it was said that if the public easement was discontinued, the
facts did not show a private right of way acquired before the town
road was laid out, by grant or otherwise, which would revive upon its
abandonment. Nor in the present proceeding is there sufficient
evidence to establish the acquisition of an easement by prescription
or grant after the discontinuance. Title may be registered therefore
free from any rights in that part of the premises which lies within
the former location of the road.

The more difficult issue is presented by the petitioner's claim
to have barred the respondents Hellyars' interest in the premises by
adverse possession.

It seems clear from the evidence in the present proceeding that
Julia Collins Amadon Knowles and her sister Louise Collins Johnson for
some reason drifted apart. The probate papers in the latter's estate
show that those claiming under Mrs. Johnson were as ignorant of the
existence of the Amadon heirs as the latter apparently were of
Mrs. Johnson's history after she left Cape Cod. Nevertheless the
petitioners and the respondents by descent and devise now hold the
premises as tenants in common unless the Hellyars have lost their
interest. The rule in Massachusetts as well as elsewhere (see, for
example, Elder v. McClosky, 70 Fed. 529 (6th Cir. 1895)) stated briefly is that entry and possession by a tenant in common is presumed
to be pursuant to his interest in the premises and not adverse to his
co-tenants absent some unequivocal action on his part notorious
enough to constitute notice, actual or constructive, of ouster to the
co-tenant. Chief Justice Bigelow stated the rule in Lefavour v. Homan, 3 Allen 354 (1862) as follows:

"While it is true that the seisin and possession of one
tenant in common is to be taken as the seisin and possession of his co-tenant, and the occupation of one will be
deemed to be in conformity to his right and title as
tenant in common and not to be adverse, so that mere
lapse of time will not necessarily or of itself bar the
right of the co-tenant, it is also true that there may
be an actual ouster of one tenant in common by another,
and that on such ouster the possession at once becomes
adverse, and if continued for twenty years, the right
of entry of the co-tenant would be thereby barred. Therefore
it is necessary, in order to maintain a title by
disseisin by one tenant in common against another, to
show some act or series of acts to indicate a decisive
intent and purpose to occupy the premises to the exclusion
and in denial of the right of the other. The facts
which will sufficiently prove such ouster and adverse
possession will vary according to the different circumstances
of parties, and no definite and positive rule
can be laid down by which all cases can be governed."

A strong indication that the entire fee has been claimed is
found in cases where a party owning of record only a fractional interest
in the premises has executed a warranty deed purporting to convey the
whole fee. Kittredge v. The Proprietors of the Locks and Canals on the
Merrimack River, 17 Pick. 246 , 247 (1835). Historically at least
the rule has been different as to quitclaim deeds, see Lafavour v.
Homan, supra, but I question whether the logic of distinction applies
to a deed with statutory quitclaim covenants. The chain of title to
the locus, however, is completely devoid of deeds other than those to
Jesse Collins recorded long after his death and not pertinent on the
resolution of this question at any rate.

The inventory in the Estate of Julia Collins Amadon Knowles does
list the entire interest in the real estate. The lack of precision
with which such instruments are prepared keeps this from rising to the
status of a warranty deed conveying the entire interest. The only
other factors which might bring the occupation by the petitioner and
his predecessors without the general rule applicable between tenants
in common is the execution and delivery by the petitioner of a deed
to an area which had comprised a portion of the original Weir Road
parcel in an exchange between the petitioner and the owner of the
adjoining land (Abstract, sh. 18 and 19) and the execution and recording
of an affidavit of relationship referred to in paragraph 7 of
the "Stipulation of Facts". It does not appear to me, however, that
the recording of such an affidavit affords the notoriety required to
alert the tenants in common to the fact that the entire interest in the
premises was being claimed by the co-owners. The affidavit may follow
within the purview of G.L. (Ter. Ed.) c. l83 §5A, but its effect is
weakened by the fact that it relates to other property. It does, on
the, other hand, provide some evidence that the Amadon chain was claiming
the entire interest in the premises. Conversely the execution and
delivery of the deed to Avis E. Nickerson dated July 24, 1972 and recorded
in Book 1708, Page 88 is an act which indicates a decisive
intent to exclude and deny the rights of others in the locus. However,
this was done only very recently, and the twenty years clearly had
not run before the respondents asserted their interest.

The respondents are residents of California and their predecessors
lived in parts of the Commonwealth located far from Eastham. The
petitioner is not on this account held to a greater degree of notoriety
in his claim that he holds the entire interest in the premises, but
his actions should be such as to afford knowledge to his tenants in
common if they had visited the premises or the Registry of Deeds that
he has attempted to disseise them. I find that this burden has not been
met in the present proceedings.

I have no doubt that within the Amadon family the premises
were considered to be the sole property of Julia which descended to
the petitioner's grandfather, his father and finally the petitioner.
The payment of real estate taxes in and of itself does not alone
constitute adverse possession although, of course, it is some indication
thereof, particularly since the petitioner did not attempt
to follow the statutory procedure for recovering his share from his
co-owners. See G. L. (Ter. Ed.) c. 60, §§85 and 86. The only other
evidence of any persuasion was the fact that plans of abutting
properties showed Arthur Amadon (whether the petitioner or his grandfather is immaterial at this time) to be the owner of the locus and
the conveyance by the petitioner to the owner of abutting property
of a portion of the parcel formerly comprising the premises. Other
than the affidavit of kinship and the recent deed to Nickerson,
however, there is nothing on the record so far as appears in the
evidence to substantiate the generally held view that the petitioner
was the sole owner of the parcel. The remaining evidence of adverse
possession consists of acts which might be done by any visitor to
Cape Cod whether or not an interest was claimed; the only distinction
arises from the fact that the acts were continued sporadically over a
period of many years. The terrain and the vegetation of the premises
were such, however, that the activities of the petitioner and his
predecessors were not apparent to the public.

The question of the acquisition of title by adverse possession
to wild lands is a knotty one. It is of necessity used by many
petitioners in establishing their title to real estate where defects
exist on the record which otherwise cannot be cured. It must, on the
other hand, be carefully weighed in instances where the degree of
proof by the very nature of the property is slight, and there are
others with a record claim to an interest in the property whose rights
would be eliminated if the doctrine prevailed. The Supreme Judicial
Court has always adhered to the well established doctrine that generally
a title by adverse possession cannot be shown to wild or woodland
that has always been open and unenclosed. See Cowden v. Cutting, 339 Mass. 164 , 168,169. The nature of the property in which it is
sought to establish title by adverse possession must be considered in
determining whether the burden has been met. LaChance v. First
National Bank and Trust Co., 301 Mass. 488 . The cases cited in Cowden
illustrated the difficulty of establishing title to land in its natural
state. This burden is heightened where adverse possession is sought
against a co-owner.

On all the evidence I find and rule that the premises shown on
the filed plan are wild land, that any rights of the Town in the road,
the center line of which forms the southerly boundary of the premises,
have been abandoned and that no private rights by prescription or grant
have been established, that the petitioner and his predecessors entered
as tenants in common with the respondents' predecessors and others,
and that acts carried out by the petitioner and his predecessors were
not of sufficient notoriety to establish that they intended to claim
the entire fee interest in the premises rather than their fractional
interest therein and that therefore the petitioner has not established
his title by adverse possession to the undivided one-eighth interest
in the property held of record by the respondents. I find and rule,
however, that the petitioner has established title adequate for registration to the remaining interests in the premises, but title may not
be registered and confirmed of any interest less than the entire fee
interest. See G.L. (Ter. Ed.) c.185 §26, as amended. If an amendment
adding the respondents as petitioners is filed within thirty days
after the expiration of the appeal period from this decision without
any appeal having been taken or within thirty days from the decree of
any appellate court affirming this decision, then title to the premises
may be registered and confirmed in the petitioner, as to an undivided
seven-eighths interest and in the respondents, as to an undivided one-eighth
interest, subject to such other matters which are not in issue
here but free of any rights of others in the abandoned town road. The
petitioner has in good faith conveyed a portion of the original Collins
parcel to an abutter who in consideration thereof conveyed a piece of
the land shown on the filed plan to the petitioner. It is only equitable
that the respondents Hellyar who are to benefit from the latter
conveyance execute without monetary consideration a statutory quitclaim
deed conveying to Avis E. Nickerson their interest in the land conveyed
to her by the petitioner by deed dated July 24, 1972 and duly recorded
in Book 1708, Page 88.

Decree accordingly.

FOOTNOTES

[Note 1] The petitioner's grandfather apparently used the spelling "Ammidon" although he is sometimes called "Amadon" in instruments in the abstract. For the sake of clarity all persons of this name who appear in the record will be referred to as "Amadon".

[Note 2] The text of the exhibits attached to the "Stipulation of Facts" is not set forth herein.